Title 77 Chapter 19 Section 205

Procedures on finding of incompetency to be executed -- Subsequent hearings -- Notice to attorneys.

77-19-205.Procedures on finding of incompetency to be executed --
Subsequent hearings -- Notice to attorneys.

(1) (a) (i) If after the hearing under Section 77-19-204 the inmate is
found to be incompetent to be executed, the court shall continue the stay of execution and the
inmate shall receive appropriate mental health treatment.

(ii) Appropriate mental health treatment under Subsection (1)(a)(i) does not include the
forcible administration of psychoactive medication for the sole purpose of restoring the inmate's
competency to be executed.

(b) The court shall order the executive director of the Department of Human Services to
provide periodic assessments to the court regarding the inmate's competency to be executed.

(c) The inmate shall be held in secure confinement, either at the prison or the State
Hospital, as agreed upon by the executive director of the Department of Corrections and the
executive director of the Department of Human Services. If the inmate remains at the prison, the
Department of Human Services shall consult with the Department of Corrections regarding the
inmate's mental health treatment.

(2) (a) The examiner or examiners designated by the executive director of the
Department of Human Services to assess the inmate's progress toward competency may not be
involved in the routine treatment of the inmate.

(b) The examiner or examiners shall each provide a full report to the court and counsel
for the state and the inmate within 90 days of receipt of the court's order. If any examiner is
unable to complete the assessment within 90 days, that examiner shall provide to the court and
counsel for the state and the inmate a summary progress report which informs the court that
additional time is necessary to complete the assessment, in which case the examiner has up to an
additional 90 days to provide the full report, unless the court enlarges the time for good cause.
The full report shall assess:

(i) the facility's or program's capacity to provide appropriate treatment for the inmate;

(ii) the nature of treatments provided to the inmate;

(iii) what progress toward restoration of competency has been made;

(iv) the inmate's current level of mental disorder and need for treatment, if any; and

(v) the likelihood of restoration of competency and the amount of time estimated to
achieve it.

(3) The court on its own motion or upon motion by either party may order the
Department of Human Services to appoint additional mental health examiners to examine the
inmate and advise the court on the inmate's current mental status and progress toward
competency restoration.

(4) (a) Upon receipt of the full report, the court shall hold a hearing to determine the
inmate's current status. At the hearing, the burden of proving that the inmate is competent is on
the proponent of competency.

(b) Following the hearing, the court shall determine by a preponderance of evidence
whether the inmate is competent to be executed.

(5) (a) If the court determines that the inmate is competent to be executed, it shall enter
findings and shall proceed under Subsection 77-19-202(2)(c).

(b) (i) If the court determines the inmate is still incompetent to be executed, the inmate
shall continue to receive appropriate mental health treatment, and the court shall hold hearings
no less frequently than at 18-month intervals for the purpose of determining the defendant's
competency to be executed.

(ii) Continued appropriate mental health treatment under Subsection (1)(a)(i) does not
include the forcible administration of psychoactive medication for the sole purpose of restoring
the inmate's competency to be executed.

(6) (a) If at any time the clinical director of the Utah State Hospital or the primary
treating mental health professional determines that the inmate has been restored to competency,
he shall notify the court.

(b) The court shall conduct a hearing regarding the inmate's competency to be executed
within 30 working days of the receipt of the notification under Subsection (6)(a), unless the court
extends the time for good cause. The court may order a hearing or rehearing at any time on its
own motion.

(7) Notice of a hearing on competency to be executed shall be given to counsel for the
state and for the inmate, as well as to the office of the prosecutor who prosecuted the inmate on
the original capital charge.